Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCA 1246

FEDERAL COURT OF AUSTRALIA

Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCA 1246

PRACTICE AND PROCEDURE - stay of proceedings – application for leave to appeal against decisions granting anti-anti-suit injunction and finding foreign arbitral proceedings abandoned – conditions on grant of leave to appeal - whether Court should impose a condition requiring the discharge of restraining orders granted by foreign courts in support of foreign arbitral proceedings Held – leave to appeal granted upon condition that applicant take steps to discharge two restraining orders; application for stay of orders pending outcome of appeal refused International Arbitration Act 1974 (Cth) Batistatos v Roads and Traffic Authority of New South Wales (2006) 227 ALR 425 applied Tringali v Stewardson Stubbs & Collett Pty Limited (1966) 66 SR NSW 335 applied Walton v Gardiner (1993) 177 CLR 378 applied COMANDATE MARINE CORP v PAN AUSTRALIA SHIPPING PTY LTD NSD 1613 OF 2006 PAN AUSTRALIA SHIPPING PTY LTD v COMANDATE MARINE CORP NSD 1130 OF 2006

RARES J

1 SEPTEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1613 OF 2006

BETWEEN: COMANDATE MARINE CORP

Applicant

AND: PAN AUSTRALIA SHIPPING PTY LTD

Respondent

JUDGE: RARES J

DATE OF ORDER: 1 SEPTEMBER 2006

as varied on 5 and 6 september 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Leave to Appeal is granted to the applicant pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) from the orders of Rares J made on 22 June 2006, 13 July 2006 and 22 August 2006 upon the following conditions including the satisfaction of the conditions in par (c) on or before 8 September 2006: (a) that the applicant provides security for the respondent's costs of both these proceedings and the proceedings brought by the applicant against "Boomerang 1" (FCA No. NSD 1223 of 2006 and HCA No. S213 of 2006) in the sum of A$190,000.00, such sum to be paid into Court (this amount includes an earlier amount of agreed security in the proceedings against "Boomerang 1"); (b) that until a final order of the Full Court of the Federal Court of Australia setting aside the orders of Rares J made on 22 August 2006 or until further order the applicant is restrained from taking any step in the London Arbitration commenced on 14 June 2006; (c) Upon the respondent, by its Counsel giving to the Court the usual undertaking as to damages and on the respondent's undertaking to do all things reasonably necessary on its part to be done to assist in the Applicant obtaining the discharge of and, if necessary, to consent to the reinstatement of the orders referred to in the orders in (i) and (ii) below in the event that the applicant's appeal succeeds in relation to the election in relation to, and abandonment of, the arbitration agreement, that the applicant on or before 8 September 2006 take all necessary steps to discharge: (i) the Worldwide Freezing Injunction granted by Mr Justice Colman on 28 July 2006 with costs in proceedings number 2006 folio 756 before Mr Justice Colman to be reserved; and (ii) the Process of Maritime Attachment and Garnishment issued by Justice Crotty on 16 June 2006. 2. Costs of the application for leave be costs in the appeal. 3. Liberty to apply on 24 hours notice. 4. The applicant's application for a stay of the orders made on 13 July 2006 and 22 August 2006 be refused. 5. If a notice of appeal is filed on or before 8 September 2006 pursuant to the leave granted in order 1, the conditions referred to in paragraphs 1(a), (b) and (c) of order 1 will become, upon such filing, orders of the Court until further order, but will otherwise be of no force or effect. 6. Upon the undertaking of the solicitor for the applicant to pay the filing fee due, grant leave to file in court the Notice of Appeal. AND THE COURT NOTES: 7. The facsimile from Royal Bank of Scotland dated 30 August 2006 confirming remittance of US$145,000.00 (equivalent to A$190,000.00) to the Norton White Commercial Trust Account, a copy of which is attached to these orders; and 8. The undertaking of the solicitor for the applicant to pay the amount of A$190,000.00 into Court upon receipt (which the Court notes has now been paid). 9. The undertaking of the respondent to the Court, by its Solicitors and Counsel, to provide security for the applicant's costs on an indemnity basis for all steps necessary for the discharge and reinstatement of the orders referred to in 1(c) in an amount to be agreed or determined by order of this Court, such sum to be paid into Court. 10. The undertaking of the respondent as referred to in order 1(c) above is without prejudice to its rights to contend, following the reinstatement of the orders referred to in 1(c) above, that those orders should be discharged on any available basis and without prejudice to the respondent's right to contend, if so advised, that it has suffered damage as a result of the Worldwide freezing injunction referred to in order 1(c) and to seek damages in that respect following the outcome of the appeal. 11. The parties agree that the sums paid into court in accordance with orders 1(a) and 1(c) as security for costs be deposited into an interest bearing account and for administration purposes only, be allocated to proceeding NSD 1613 of 2006. THE COURT FURTHER ORDERS THAT: 12. The applicant be granted leave to file in court the affidavits of Robert Reginald Wilson sworn 29 August 2006 and 1 September 2006. 13. The applicant be granted leave to file in Court the Amended Notice of Motion dated 1 September 2006. 14. The Amended Notice of Motion filed in Court today be made returnable instanter but reserve the right of Pan Australia Shipping Pty Ltd to apply for an adjournment of the hearing of the Amended Motion in respect of the Applicant's request for a stay in the event that there is some identified prejudice to it being able to proceed today. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.